106 N.E. 759 | NY | 1914
The Albany Evening Journal, published by the defendant, was for many years designated as the state paper for the publication of the statutes and of legal notices and advertisements. The designation was made by the secretary of state, comptroller and treasurer under the authority of section 73 of chapter 248 of the Laws of 1893 (now section 82 of the Executive Law, L. 1909, ch. 23). It has been the practice to pay for such publications at the rate of seventy-five cents per folio. During the same years the defendant's newspaper was also designated by the board of supervisors of Albany county as the county paper in accordance with section
At the outset a question of practice must be determined. The decision of the trial court was a nonsuit. It was made without findings. Its form is authorized by section 1021 of the Code of Civil Procedure. No exception to this decision was filed by the People. This court has held that where the decision takes the form of a nonsuit, an exception is necessary. (Ross v.Caywood,
We think the defendant must be held to have waived this objection by its failure to point out to the Appellate Division that an exception was lacking. We cannot doubt that if that objection had been made, the Appellate Division, by suspending the argument, would have given the People an opportunity to supply the omission. Where an appeal has been seasonably taken, the Supreme Court has power to relieve against an omission to file an exception to the decision within the ten days prescribed by statute. (Code Civ. Pro. sec. 994.) The defendant did not bring the point that it now urges to the notice of the court below. All that it did was to make this statement in its brief: "Respondent insists upon its right to stand upon and urge, and does stand upon and urge every point of law or practice appearing to its advantage in the record to withstand reversal. It waives nothing. It accords a like privilege to its adversary seeking reversal." That statement does not tell us any thing about the points of law and practice that were thus sweepingly reserved. We *6
think that something more was required if this objection was to be retained. The case is not like Ross v. Caywood (supra) where the objection, though not made in the oral argument, was stated in the briefs. Here it was not made either orally or in writing. It is not necessary for us to hold that a failure to make an objection on an intermediate appeal is always a waiver of the objection in this court. (Galloway v. Erie R.R. Co.,
We are thus brought to the merits. They do not seem to us to be doubtful. The defendant did not print the laws twice, once in fulfilment of its duty as the state paper, and once in fulfilment of its duty as the county paper. The concession is that "no one of said laws was inserted, printed, or appeared more than once or in more than one issue of said newspaper." There has thus been a single service, and a double reward. The statutes do not justify that outcome. We perceive no reason why the same paper, if designated both as the state and as the county paper, may not thereafter, by publishing the statutes twice, earn a compensation in each capacity. There must, however, be a twofold service. The legislature did not intend that the designation should be made use of as an honorary title, yielding new emoluments without the burden of added duties.
We cannot sustain the defendant's argument that the approval of its bills by the comptroller is an audit which bars the state from the recovery of the illegal payments. We are not dealing with such a problem as would be before us if some question of fact in respect of the performance of the services or their value had been the subject of *8
genuine dispute. In such a case the determination by the comptroller might, in the absence of fraud or collusion, be controlling upon the courts. (People v. Sutherland,
The defendant criticizes the form of order entered at the Appellate Division. We think it embodies new findings in such a form as to satisfy the requirements of the rule laid down inBonnette v. Molloy (
The judgment should be affirmed, with costs.
WERNER, HISCOCK, CHASE, COLLIN and HOGAN, JJ., concur; MILLER, J., not sitting.
Judgment affirmed.